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Could anti-prostitution Bill C-36 also ban porn?

One of the concerns that has been raised about Bill C-36 is that "sexual services" is not defined.

Terri-Jean Bedford, one of the plaintiffs in the case that overturned the previous anti-prostitution laws, has raised this question a number of times, without receiving an answer. A professional dominatrix's job, after all, involves fulfilling a fantasy, and may not include any actual sex acts at all. Does sex have to happen in order for there to have been a "sexual service?" Where is that line drawn?

It's because of this vague nature of the terminology that some are asking if the wording could also inadvertently ban advertising and/or paying for sex toys or the services of a sex therapist. Advertising sexual health services could also come into question.

Is porn a "sexual service?"

Is a sexual service exchanged via pornography? It could be argued that porn acts as an intermediary, at least, so it might be a question that is subject to the interpretation of whichever judge happens to hear it.

There are people at both ends of the political spectrum who oppose pornography and would be amenable to a ban on it -- from the right usually because of concerns about morality, and from the left often because of concerns about the portrayal of women and the possibility that it contributes to rape culture. There are also opponents at both ends of the political spectrum as well, and for the purposes of this question, it is up to readers how they feel about the prospect of such a ban. However, people of all political stripes would hopefully agree that such a sweeping form of censorship should at least require a lengthy debate.

Under the original terms of the bill, concerns about advertising sex already treads into the realm of censorship and freedom of speech. If that is coupled with flawed and vague terminology, it's reasonable to ask how far beyond the original intent that could be taken.

If the bill could be used to ban porn (and that question might remain entirely speculative until something actually does wind its way through the court system), all it would take is for someone wanting to close their local porn shop to try to sue them for -- or push for them to be charged with -- advertising sexual services. There's no guarantee that anyone would succeed at that, but the possibility that it might is a question worth asking.

Key mechanisms in C-36

There are mechanisms within the bill that would certainly assist such a use of the law.

The bill includes search and seizure powers for materials that are "obscene, a crime comic, child pornography, a voyeuristic recording or an advertisement of sexual services." To be fair, all of those items besides "advertisement of sexual services" are already listed in the Criminal Code as materials that can be seized, currently. But aside from the obviously important proscription of child pornography, none of those other things are characteristically illegal to buy or possess anymore (in the case of voyeuristic recordings, their actionability hinges upon how the recording is obtained), and so we don't see searches and seizure of pornography, except through some federal departments like the Canada Border Services Agency, which simply confiscates material. However, this law does ban advertisement of sexual services outright, so there would be greater enforceability.

Additionally, for the purposes of this law at least, the Internet is considered "a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present" -- or at least the Harper government sees this phrasing as the best mechanism to include online advertising.

With both the search-and-seizure powers and definition to include online media in the bill, even if it turned out that porn was not legally interpreted as a sexual service, C-36 still provides the structural basis needed to build an anti-porn law, with a minimal amount of effort required.

Soft censorship and stealth

Bill C-36 would allow the Harper Conservatives to institute a ban on porn without appearing to be pro-censorship. A significant portion of the Conservative base uses freedom of speech as a rallying point, especially when it comes to divisive speech, tabloid-style and gotcha journalism, and hateful (though not necessarily legally hate) speech. Even calling out hateful speech or non-legal consequences for speech can interpreted as censorship by this contingent. So if the government wanted to establish a ban, it would probably need to be done by stealth, and look like an accident.

Regardless of how broadly "sexual services" is defined, the ban on advertising could conceivably be used to pressure Internet service providers (ISPs) to institute a content filter system much like MP Joy Smith had been calling for, only months ago. That is, if ISPs are threatened with the possibility being held legally accountable for any ads obtained through their networks, a content filter then appears to be the path of least resistance. And no matter how specific ISP programmers might try to be, content filters have a tendency to be arbitrary, overly broad, and filter unintended content, just to be safe. Even if a solid ban cannot be accomplished, soft censorship would remain possible.

Where persons under the age of 18 can reasonably be expected to be present: the legal tactic

The eerie phrasing of "a place where persons under the age of 18 can reasonably be expected to be present" first raised this question in my mind, because it sounds very much like the legal tactic used in Russia's law banning all "homosexual propaganda" (that is, anything that portrays LGBT people positively -- and I'm not speaking hyperbolically when I say that). When that law passed, the Canadian and American religious right applauded the move, and began debating ways to bring such a law to North America. Although it could be a haphazard trek from point A to B, each win that occurs in between provides red meat to key elements of the social Conservative base, and injects legislation into the bedrooms of the nation.

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